EX-4.1 3 ea021919901ex4-1_gelteq.htm REPRESENTATIVE'S WARRANTS, DATED OCTOBER 30, 2024, ISSUED TO THE BENCHMARK COMPANY, LLC

展示4.1

 

代表的认股权证

 

本购买权凭证的注册持有人同意,在此接受后,将在发行普通股权的销售开始后六(6)个月的期间内,不得:(A)向任何非基准公司,LLC的高管或合伙人以外的任何人出售、转让、转让、质押或抵押这份购买权凭证,每个高管或合伙人都同意这里所规定的限制,并符合FINRA行为规则5110(E)(1)的规定;或(B)导致这份购买权凭证或可在此项下发行的证券成为任何对冲、空头卖出、衍生、看跌或看涨交易的对象,这样做将导致该购买权凭证或在此之下的证券的有效经济处分,除非根据FINRA规则5110(E)(2)的规定。

 

此购买权不得在2025年4月22日之前行使,东部时间2029年10月22日下午5:00后作废。

 

普通股购买认股权证书

 

购买91,000股普通股的

GELTEQ 有限公司

 

1. 购买认股权证。这证明了这一点, 根据澳大利亚上市有限公司Gelteq Limited之间签订的某些承保协议 (这个”公司”)和 Benchmark Company, LLC(”基准”),日期为 2024 年 10 月 28 日(”承保 协议”)、Benchmark(以其允许的继任者或受让人以这种身份,”持有者”),已注册 根据以下条款,本购买权证的所有者有权受行使限制和以下条件的约束 从 2025 年 4 月 22 日起随时或不时制定(”开课日期”),在下午 5:00 或之前, 美国东部时间,2029 年 10 月 22 日(到期日期,”),该日期为自开始之日起五 (5) 年 承销协议设想的首次公开募股的销售(”提供”) 在注册下 关于公司 F-1 表格(注册号 333-280804)的声明( “注册声明”),但此后不行, 全部或部分认购、购买和接收公司不超过91,000股普通股,不计面值(”股票”), 视情况而定,如中所述进行调整 第 5 部分 在这里。本购买权证不可行使或兑换,期限超过五年 自本次发行中开始出售普通股之日起的几年。如果到期日是银行机构的日期 经法律或行政命令授权关闭,则本购买权证可以在第二天行使,但不是 这样的日子符合此处的条款。在自本协议发布之日起至到期日结束的期限内, 公司同意不采取任何会终止本购买权证的行动。本购买权证最初的行使价格为5美元 每股(本次发行中出售股票价格的125%);但是,前提是发生任何指定事件时 在 第 5 部分 本收购权证授予的权利,包括每股行使价和股份数量 在进行此项工作时收到的,应按其中规定进行调整。这个词”行使价格” 应指 初始行使价或调整后的行使价,视情况而定。此处未定义的任何术语应具有规定的含义 在承保协议中。

 

2. 行权.

 

2.1 行使表格。 要行使此购买权证,需要填写附上的行使表格 附录 A (“本登记声明”) 由特立软件股份有限公司,一家德拉华州股份公司 (以下简称为“本公司”) 提交,目的是为了注册其额外的7,184,563股A类普通股,每股面值$0.0001 (以下简称为“A类普通股”), 以及在特立软件股份有限公司 2022年股权激励计划下可发行股份的1,436,911股A类普通股,注(下文简称为“A类普通股”)。行使表格必须完整填写并交送给公司,连同这个购买权证并支付购买股票的行使价格,通过银行转账支付现金或通过银行汇票或本行支票支付,抬头写为公司。如果本购买权证代表的认股权在到期日之前或当日东部时间下午5点之前未行使,则本购买权证将变为作废,不再生效,本购买权证代表的所有权利将终止并失效。

 

 

 

2.2 无现金行权在此之前,持有人可选择通过将本购买认股权书连同行使表格交还公司的方式,获得与本购买认股权书价值(或其部分)相等的股份数量 第2.1节作为支付现金或支票支付给公司的方式行使本购买认股权,持有人可以选择通过将本购买认股权书连同行使表格交还公司的方式,获得与本购买认股权书价值(或其部分)相等的股份数量,此时公司将按照以下公式向持有人发行股份:

 

      Y(A-B)  
  X = A  

 

其中, X = 要发放给持有人的股票数;
  Y = 行权购买期权的股份数;
  A = 一股的公允市价; 并
  b = 行权价格。

 

根据本节2.2,公允市场价值是指对于任何日期,由适用的第一项以下条款确定的价格:(a)如果普通股当时在合格市场上进行上市或报价,则其价值被视为在行权之前的五个交易日内,在该合格市场的任何交易日上最高的盘中价或收盘价,(b)如果OTCQb或OTCQX不是合格市场,则该价值被视为在行权之前的五个交易日内,在OTCQb或OTCQX上的任何交易日内,普通股的最高盘中价或收盘价,如适用,(c)如果普通股当时未被列入或报价在OTCQb或OTCQX上进行交易,且如果普通股当时的价格被OTC Markets Group, Inc.(或类似机构或机构继承其价格报告职能的组织),即“OTC Markets集团”在名为“Pink Sheets”的公布的OTC Markets Group中报告,则该价值被视为在行权之前的五个交易日内,在Pink Sheets上的普通股的任何交易日上最高的盘中价或收盘价,或(d)在所有其他情况下,普通股的公允市场价值由由持有人诚信选择并且公司合理接受的独立评估师确定。

 

2.3 Andrew P. Desjardins医学博士g结束每张根据本购买权证购买的证券证书上应标有以下图例,除非该证券已在1933年修订版《证券法》("证券法”):

 

本证书所代表的证券未根据1933年修正案的《证券法》(以下简称“法案”)或适用的州法进行注册。购买权本证书所代表的证券受公司证券注册声明(文件编号333-280804)规定的发行结束后六(6)个月的锁定期限的约束,并且可能不得(A)销售、转让、转让、赠与或抵押给任何人,而不是基准公司有限责任公司或基准公司有限责任公司的善意官员或合伙人,或(B)成为这些证券在此处的有效经济处置的任何套期保值、沽空、衍生、看跌或看涨交易的对象,但在FINRA规则5110(E)(2)中另有规定的情况除外。

 

3. “转让”还将被视为发生在任何操作持有人(或该操作持有人的允许受让人)有B类普通股股份的非盈利机构(或该股份的任何受益人)持有该B类普通股股份的顶层支配权或独家投票权控制时,就该B类普通股股份而言,操作持有人(或其允许受让方)不再保留独立支配权(在操作持有人和其允许受让方之间)和其对该安全的投票或投票的独占支配权(包括通过委托、投票协议或其他方式),情况下(在这种情况下)。即使是这种情况,以下任何情况也不被视为“转让”:.

 

3.1 一般限制本购买认股权证的持有人通过接受本文件,同意在发行普通股的销售自开始之日起的一百八十(180)天期间(即与股票交易委员会(“生效日期。”)的发行有关): (a) 不得将本购买认股权证转让、赠与、抵押或用作质押,除非转让给:(i)代表或承销商、配售代理商或进行发行的选定经销商,或(ii)代表或任何承销商、配售代理商或选定经销商的官员或合伙人,在(i)和(ii)中,每位都同意根据FINRA规则5110(e)(1)中包含的限制进行交易,或(b)导致本购买认股权证或本文可发出的证券成为任何对冲、委员会:卖空、衍生产品、看跌或看涨交易的对象,而这些交易将导致对本购买认股权证或本文中的证券的有效经济处分,除非根据FINRA规则5110(e)(2)允许。自生效日之后的一百八十(180)天起,转让给其他人可能需要遵守或豁免适用的证券法规定。为了进行任何允许的转让,持有人必须向公司提交附在此的转让表格 附件B 已填写和签署,连同本购买认股权证及与之相关支付的所有转让税(如果有)。公司应在五(5)个营业日内转移本购买认股权证至公司名册,并应签署并交付一份新的、与适当的受让人明确证明有权购买此处可购买股数的股票认股权或类似期限的股票认股权,或根据任何该等转让拟定的股数部分。

 

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3.2 根据证券法规定的限制此购买权证明的证券不得转让,直到:(i)根据法律要求,公司收到公司法律顾问意见,证券可以依据证券法和适用州证券法的豁免规定进行转让,或者(ii)与这些证券的发行和出售有关的注册声明或注册声明的后续修正已由委员会提交并生效,同时已确定符合适用州证券法。

 

4. 发行新权证.

 

4.1 部分行使或转让受限于 第3章。资格. 根据本条款,本购买权证可以全部或部分行使或转让。如果仅部分行使或转让本购买权证,在提供足够支付任何行使价格和/或转让税款的资金的情况下,出示此购买权证以便注销,并一并提交已签署的行使或转让表格。 第2.1节 根据本条款,公司应免费向持有人交付一份新的与本购买权证具有相同效力的购买权证,登记以持有人的名义,证明持有人有权购买本购买权证下尚未行使或转让的股票数量。

 

4.2 证书丢失收到公司认可的关于此购买权证的遗失、盗窃、毁坏或损毁的证据,并获得合理的赔偿或提供债券担保后,公司将执行并交付一份新的具有相同条件和日期的购买权证。由于此类遗失、盗窃、毁坏或损毁而执行和交付的任何新购买权证将构成公司方的替代合同义务。

 

5. 广告j调整.

 

5.1 广告j调整行权价格和股票数量行权价格和本购买认股权所代表的股份数目,应不时按照下文规定进行调整:

 

5.1.1 分红派息; 拆分增加如果在此日期后,且遵守下述规定,普通股的未偿还份数减少,要么通过普通股合并、组合或再分类或其他类似事件的方式,那么在该日期生效时,根据未偿还股票的减少比例,此处可购买的股票数量将相应减少,且行权价格将相应增加。 第5.1.3节 如果公司股息分红派息或股份拆细分以及其他类似事件,导致公司未归属股份数量增加,在该生效日,根据未归属股份数量的增加,本协议规定的可购买股份数量将相应增加,并且行权价格将相应减少。

 

5.1.2 Aggregation of Shares. If, after the date hereof, and subject to the provisions of Section 5.1.3 below, the number of outstanding Shares is decreased by a consolidation, combination or reclassification of Shares or other similar event, then, on the effective date thereof, the number of Shares purchasable hereunder shall be decreased in proportion to such decrease in outstanding shares, and the Exercise Price shall be proportionately increased.

 

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5.1.3 Replacement of Shares upon Reorganization, etc. In case of any reclassification or reorganization of the outstanding Shares other than a change covered by Section 5.1.1 or Section 5.1.2 hereof or that solely affects the par value of such Shares, or in the case of any share reconstruction or amalgamation or merger or consolidation of the Company with or into another corporation (other than a consolidation or share reconstruction or amalgamation or merger in which the Company is the continuing corporation and that does not result in any reclassification or reorganization of the outstanding Shares), or in the case of any sale or conveyance to another corporation or entity of the property of the Company as an entirety or substantially as an entirety in connection with which the Company is dissolved, the Holder of this Purchase Warrant shall have the right thereafter (until the expiration of the right of exercise of this Purchase Warrant) to receive upon the exercise hereof, for the same aggregate Exercise Price payable hereunder immediately prior to such event, the kind and amount of shares of stock or other securities or property (including cash) receivable upon such reclassification, reorganization, share reconstruction or amalgamation or merger, or consolidation, or upon a dissolution following any such sale or transfer, by a Holder of the number of Shares of the Company obtainable upon exercise of this Purchase Warrant immediately prior to such event; and if any reclassification also results in a change in Shares covered by Section 5.1.1 or Section 5.1.2, then such adjustment shall be made pursuant to Section 5.1.1, Section 5.1.2 and this Section 5.1.3. The provisions of this Section 5.1.3 shall similarly apply to successive reclassifications, reorganizations, share reconstructions or amalgamations, mergers or consolidations, sales or other transfers.

 

5.1.4 Changes in Form of Purchase Warrant. This form of Purchase Warrant need not be changed because of any change pursuant to this Section 5.1, and Purchase Warrants issued after such change may state the same Exercise Price and the same number of Shares as are stated in the Purchase Warrants initially issued pursuant to this Agreement. The acceptance by any Holder of the issuance of new Purchase Warrants reflecting a required or permissive change shall not be deemed to waive any rights to an adjustment occurring after the date hereof or the computation thereof.

 

5.2 Substitute Purchase Warrant. In case of any consolidation of the Company with, or share reconstruction or amalgamation or merger of the Company with or into, another corporation (other than a consolidation or share reconstruction or amalgamation or merger which does not result in any reclassification or change of the outstanding Shares), the corporation formed by such consolidation or share reconstruction or amalgamation or merger shall execute and deliver to the Holder a supplemental Purchase Warrant providing that the holder of each Purchase Warrant then outstanding or to be outstanding shall have the right thereafter (until the stated expiration of such Purchase Warrant) to receive, upon exercise of such Purchase Warrant, the kind and amount of shares of stock and other securities and property receivable upon such consolidation or share reconstruction or amalgamation or merger, by a holder of the number of Shares of the Company for which such Purchase Warrant might have been exercised immediately prior to such consolidation, share reconstruction or amalgamation or merger, sale or transfer. Such supplemental Purchase Warrant shall provide for adjustments which shall be identical to the adjustments provided for in this Section 5. The above provision of this Section 5 shall similarly apply to successive consolidations or share reconstructions or amalgamations or mergers.

 

5.3 Elimination of Fractional Interests. The Company shall not be required to issue certificates representing fractions of Shares upon the exercise of the Purchase Warrant, nor shall it be required to issue scrip or pay cash in lieu of any fractional interests, it being the intent of the parties that all fractional interests shall be eliminated by rounding any fraction up or down, as the case may be, to the nearest whole number of Shares or other securities, properties or rights.

 

6. Reservation and Listing. The Company shall at all times reserve and keep available out of its authorized Shares, solely for the purpose of issuance upon exercise of this Purchase Warrant, such number of Shares or other securities, properties or rights as shall be issuable upon the exercise thereof. The Company covenants and agrees that, upon exercise of this Purchase Warrant and payment of the Exercise Price therefor, in accordance with the terms hereby, all Shares and other securities issuable upon such exercise shall be duly and validly issued, fully paid and non-assessable and not subject to preemptive rights of any shareholder. The Company further covenants and agrees that upon exercise of this Purchase Warrant and payment of the exercise price therefor, all Shares and other securities issuable upon such exercise shall be duly and validly issued, fully paid and non-assessable and not subject to preemptive rights of any shareholder. As long as this Purchase Warrant shall be outstanding, the Company shall use its commercially reasonable efforts to cause all Shares issuable upon exercise of this Purchase Warrant to be listed (subject to official notice of issuance) on all national securities exchanges (or, if applicable, on the OTC Bulletin Board or any successor trading market) on which the Shares issued to the public in the Offering may then be listed and/or quoted.

 

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7. Registration.

 

7.1 Piggyback Registration. The issuance of the Purchase Warrant and the Shares has been registered on the Registration Statement. The Company shall file periodic filings with the Commission during the term of this Purchase Warrant as required by the rules and regulations issued by the Commission. To the extent the Company does not maintain an effective registration statement for the Shares, during the term of this Purchase Warrant and for a period of no more than five (5) years from the commencement of sales of the Offering in accordance with FINRA Rule 5110(g)(8)(D), whenever the Company proposes to register any of its securities under the Securities Act, whether for its own account or for the account of another shareholder (except for the registration of securities (A) to be offered pursuant to an employee benefit plan on Form S-8 or (B) pursuant to a registration made on Form F-4, or any successor forms then in effect) at any time and the registration form to be used may be used for the registration of the Shares, it will so notify in writing the Holder (a “Piggyback Notice”) as soon as practicable but in no event less than five (5) business days before the anticipated filing date and offer to the Holder the opportunity to register the sale of such number of Shares as such Holder may request in writing within three (3) business days after receipt of such Piggyback Notice (a “Piggyback Registration”). Notwithstanding the foregoing, the Company may delay any such notice to the Holder, including until after filing a registration statement, so long as the Holder has the same amount of time to determine whether to participate in an offering as it would have had if such notice had not been so delayed. The Company shall cause such Shares to be included in such registration and shall use commercially reasonable efforts to cause the managing underwriter or underwriters of a proposed underwritten offering to permit the Shares requested to be included in a Piggyback Registration on the same terms and conditions as any similar securities of the Company and to permit the sale or other disposition of such Shares in accordance with the intended method(s) of distribution thereof; provided, however, that if, solely in connection with any primary underwritten public offering for the account of the Company, the managing underwriter(s) thereof shall, in its reasonable discretion, impose a limitation on the number of Ordinary Shares which may be included in the registration statement because, in such underwriter(s)’ judgment, marketing or other factors dictate such limitation is necessary to facilitate public distribution, then the Company shall be obligated to include in such registration statement only such limited portion of the Shares with respect to which the Holder requested inclusion hereunder as the underwriter shall reasonably permit. Holder shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such Piggyback Registration.

 

7.2 Demand Registration. Unless all of the Shares are included in an effective registration statement with a current prospectus, the Company, upon written demand (“Demand Notice”) of the Holder(s) of at least 51% of the Purchase Warrant and/or the underlying securities (“Majority Holder(s)”), agrees to register on two occasions, all or any portion of the remaining Ordinary Shares as requested by the Majority Holder(s) in the Demand Notice, provided that no such registration will be required unless the Holders request registration of an aggregate of at least 51% of the outstanding Shares. On such occasion, the Company will file a new registration statement or a post-effective amendment to the Registration Statement covering the Shares within sixty (60) days after receipt of the Demand Notice and use its commercially reasonable efforts to have such registration statement or post-effective amendment declared effective as soon as possible thereafter. The demand for registration may be made at any time after one (1) year from the commencement of sales of the Offering, but no later than five (5) years from the commencement of sales of the Offering. The Company covenants and agrees to give written notice of its receipt of any Demand Notice by any Holder(s) to all other registered Holders of the Purchase Warrant and/or the Shares within ten (10) days from the date of the receipt of any such Demand Notice, who shall have five days from the receipt of such Notice in which to notify the Company of their desire to have their Shares included in the Registration Statement. The Company shall bear all fees and expenses attendant to registering the Shares upon the first Demand Notice, including the reasonable expenses of any legal counsel selected by the Holders to represent them in connection with the sale of the Shares, but the Holders shall pay any and all underwriting commissions, if any. The Holders shall bear all fees and expenses attendant to registering the Shares upon the second Demand Notice. The Company agrees to use its commercially reasonable efforts to qualify or register the Shares in such States as are reasonably requested by the Majority Holder(s); provided, however, that in no event shall the Company be required to register the Shares in a State in which such registration would cause (i) the Company to be obligated to qualify to do business in such State or execute a general consent to service of process, or would subject the Company to taxation as a foreign corporation doing business in such jurisdiction or (ii) the principal shareholders of the Company to be obligated to escrow their shares of capital stock of the Company. The Company shall cause any registration statement or post-effective amendment filed pursuant to the demand rights granted under Section 7 to remain effective for a period of twelve (12) consecutive months from the effective date of such registration statement or post-effective amendment or until the Holders have completed the distribution of the Shares included in the Registration Statement, whichever occurs first. If (i) in the good faith judgment of the Board, filing a registration statement pursuant to Section 7 would be seriously detrimental to the Company and the Board concludes, as a result, that it is essential to defer the filing of such registration statement at such time, and (ii) the Company shall furnish to such Holders a certificate signed by the President of the Company stating that in the good faith judgment of the Board it would be seriously detrimental to the Company for such registration statement to be filed in the near future and that it is, therefore, essential to defer the filing of such registration statement, then the Company shall have the right to defer such filing on two occasions for an aggregate of not more than one hundred and twenty (120) days in any twelve-month period. The Company is only required to use its commercially reasonable efforts to cause a registration statement covering issuance of the Shares underlying the Purchase Warrant to be declared effective, and once effective, only to use its commercially reasonable efforts to maintain the effectiveness of the registration statement. The Company will not be obligated to deliver securities, and there are no contractual penalties for failure to deliver securities, if a registration statement is not effective at the time of exercise. Additionally, in no event is the Company obligated to settle any Purchase Warrant, in whole or in part, for cash in the event it is unable to register the Shares.

 

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8. Certain Notice Requirements.

 

8.1 Holder’s Right to Receive Notice. Nothing herein shall be construed as conferring upon the Holders the right to vote or consent or to receive notice as a shareholder for the election of directors or any other matter, or as having any rights whatsoever as a shareholder of the Company. If, however, at any time prior to the expiration of the Purchase Warrants and their exercise, any of the events described in Section 8.2 shall occur, then, in one or more of said events, the Company shall give written notice of such event at least fifteen days prior to the date fixed as a record date or the date of closing the transfer books (the “Notice Date”) for the determination of the shareholders entitled to such dividend, distribution, conversion or exchange of securities or subscription rights, or entitled to vote on such proposed dissolution, liquidation, winding up or sale. Such notice shall specify such record date or the date of the closing of the transfer books, as the case may be. Notwithstanding the foregoing, the Company shall deliver to each Holder a copy of each notice given to the other shareholders of the Company at the same time and in the same manner that such notice is given to the shareholders.

 

8.2 Events Requiring Notice. The Company shall be required to give the notice described in this Section 8 upon one or more of the following events: (i) if the Company shall take a record of the holders of its Shares for the purpose of entitling them to receive a dividend or distribution payable otherwise than in cash, or a cash dividend or distribution payable otherwise than out of retained earnings, as indicated by the accounting treatment of such dividend or distribution on the books of the Company, (ii) the Company shall offer to all the holders of its Shares any additional shares of capital stock of the Company or securities convertible into or exchangeable for shares of capital stock of the Company, or any option, right or warrant to subscribe therefor, or (iii) a dissolution, liquidation or winding up of the Company (other than in connection with a consolidation or share reconstruction or amalgamation or merger) or a sale of all or substantially all of its property, assets and business shall be proposed.

 

8.3 Notice of Change in Exercise Price. The Company shall, promptly after an event requiring a change in the Exercise Price pursuant to Section 5 hereof, send notice to the Holders of such event and change (“Price Notice”). The Price Notice shall describe the event causing the change and the method of calculating same and shall be certified as being true and accurate by the Company’s Chief Financial Officer.

 

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8.4 Transmittal of Notices. All notices, requests, consents and other communications under this Purchase Warrant shall be in writing and shall be deemed to have been duly made (1) when hand delivered, (2) when mailed by express mail or private courier service or (3) when the event requiring notice is disclosed in all material respects and filed in a current report on Form 8-K (or similar report of the Company required of foreign private issuers) or in a definitive proxy statement on Schedule 14A prior to the Notice Date: (i) if to the registered Holder of the Purchase Warrant, to the address of such Holder as shown on the books of the Company, or (ii) if to the Company, to following address or to such other address as the Company may designate by notice to the Holders:

 

If to the Holder:

 

The Benchmark Company, LLC

150 E 58th St # 17

New York, NY 10155

Attn: John J. Borer III

Email: jborer@benchmarkcompany.com

 

With a copy (which shall not constitute notice) to:

 

Sichenzia Ross Ference Carmel LLP

1185 Avenue of the Americas, 31st Floor

New York, NY 10036

Attn: Darrin M. Ocasio Esq. Email: DMOcasio@SRFC.LAW

 

If to the Company:

 

Gelteq Limited Level 4

100 Albert Road

South Melbourne VIC, 3025 Australia

Attention: Nathan Givoni, Chief Executive Officer

 

with copies (which shall not constitute notice) to:

 

Ellenoff Grossman & Schole LLP

1345 Avenue of the Americas, 11th Floor New York, NY 10105

Attn: Richard I. Anslow, Esq. Email: ranslow@egsllp.com

 

9. Miscellaneous.

 

9.1 Amendments. The Company and Benchmark may from time to time supplement or amend this Purchase Warrant without the approval of any of the Holders in order to cure any ambiguity, to correct or supplement any provision contained herein that may be defective or inconsistent with any other provisions herein, or to make any other provisions in regard to matters or questions arising hereunder that the Company and Benchmark may deem necessary or desirable and that the Company and Benchmark deem shall not adversely affect the interest of the Holders. All other modifications or amendments shall require the written consent of and be signed by the party against whom enforcement of the modification or amendment is sought.

 

9.2 Headings. The headings contained herein are for the sole purpose of convenience of reference, and shall not in any way limit or affect the meaning or interpretation of any of the terms or provisions of this Purchase Warrant.

 

9.3 Entire Agreement. This Purchase Warrant (together with the other agreements and documents being delivered pursuant to or in connection with this Purchase Warrant) constitutes the entire agreement of the parties hereto with respect to the subject matter hereof, and supersedes all prior agreements and understandings of the parties, oral and written, with respect to the subject matter hereof.

 

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9.4 Binding Effect. This Purchase Warrant shall inure solely to the benefit of and shall be binding upon, the Holder and the Company and their permitted assignees, respective successors, legal representatives and assigns, and no other person shall have or be construed to have any legal or equitable right, remedy or claim under or in respect of or by virtue of this Purchase Warrant or any provisions herein contained.

 

9.5 Governing Law; Submission to Jurisdiction; Trial by Jury. This Purchase Warrant shall be governed by and construed and enforced in accordance with the laws of the State of Delaware, without giving effect to conflict of laws principles thereof. The Company hereby agrees that any action, proceeding or claim against it arising out of, or relating in any way to this Purchase Warrant shall be brought and enforced in the courts located in Los Angeles, California, or in the United States District Court located in Los Angeles, California, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. Any process or summons to be served upon the Company may be served by transmitting a copy thereof by registered or certified mail, return receipt requested, postage prepaid, addressed to it at the address set forth in Section 8 hereof. Such mailing shall be deemed personal service and shall be legal and binding upon the Company in any action, proceeding or claim. The Company and the Holder agree that the prevailing party(ies) in any such action shall be entitled to recover from the other party(ies) all of its reasonable attorneys’ fees and expenses relating to such action or proceeding and/or incurred in connection with the preparation therefor. The Company (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates) and the Holder hereby irrevocably waive, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.

 

9.6 Waiver, etc. The failure of the Company or the Holder to at any time enforce any of the provisions of this Purchase Warrant shall not be deemed or construed to be a waiver of any such provision, nor to in any way affect the validity of this Purchase Warrant or any provision hereof or the right of the Company or any Holder to thereafter enforce each and every provision of this Purchase Warrant. No waiver of any breach, non-compliance or non-fulfillment of any of the provisions of this Purchase Warrant shall be effective unless set forth in a written instrument executed by the party or parties against whom or which enforcement of such waiver is sought; and no waiver of any such breach, non-compliance or non-fulfillment shall be construed or deemed to be a waiver of any other or subsequent breach, non-compliance or non-fulfillment.

 

9.7 Exchange Agreement. As a condition of the Holder’s receipt and acceptance of this Purchase Warrant, Holder agrees that, at any time prior to the complete exercise of this Purchase Warrant by Holder, if the Company and Benchmark enter into an agreement (“Exchange Agreement”) pursuant to which they agree that all outstanding Purchase Warrants will be exchanged for securities or cash or a combination of both, then Holder shall agree to such exchange and become a party to the Exchange Agreement.

 

9.8 Execution in Counterparts. This Purchase Warrant may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

 

[Remainder of page intentionally left blank.]

 

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IN WITNESS WHEREOF, the Company has caused this Purchase Warrant to be signed by its duly authorized officer as of October 30, 2024.

 

GELTEQ LIMITED  
     
By: /s/ Nathan Givoni  
  Name:  Nathan Givoni  
  Title: CEO  

 

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EXHIBIT A

 

Form to be used to exercise Purchase Warrant:

 

Date:________, 20 _____

 

The undersigned hereby elects irrevocably to exercise the Purchase Warrant for ________ Shares of Gelteq Limited, a company incorporated in the State of Victoria, Australia (the “Company”) and hereby makes payment of $___ (at the rate of $___ per Share) in payment of the Exercise Price pursuant thereto. Please issue the Shares as to which this Purchase Warrant is exercised in accordance with the instructions given below and, if applicable, a new Purchase Warrant representing the number of Shares for which this Purchase Warrant has not been exercised.

 

or

 

The undersigned hereby elects irrevocably to convert its right to purchase _____ Shares under the Purchase Warrant for ____ Shares, as determined in accordance with the following formula:

 

X = Y(A-B)

A

 

Where, X = The number of Shares to be issued to Holder;

Y = The number of Shares for which the Purchase Warrant is being exercised;

A = The fair market value (defined in Section 2.2 of the Purchase Warrant) of one Share which is equal to $ ___; and B = The Exercise Price which is equal to $ ____ per share

 

The undersigned agrees and acknowledges that the calculation set forth above is subject to confirmation by the Company and any disagreement with respect to the calculation shall be resolved by the Company in its sole discretion.

 

Please issue the Shares as to which this Purchase Warrant is exercised in accordance with the instructions given below and, if applicable, a new Purchase Warrant representing the number of Shares for which this Purchase Warrant has not been exercised.

 

   
Signature  
   
   
Name/Title  

 

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INSTRUCTIONS FOR REGISTRATION OF SECURITIES

 

Delivery of Warrant Shares. The Company shall deliver to Holder, or its designee or agent as specified below, ______ Warrant Shares in accordance with the terms of the Warrant. Delivery shall be made to Holder, or for its benefit, as follows:

 

☐ Check here if requesting delivery as a certificate to the following name and to the following address:

 

Issue to:  
   
   

 

Check here if requesting delivery by Deposit/Withdrawal at Custodian as follows:

 

DTC Participant:  
DTC Number:  
Account Number:  

 

Date: ___________________ ,

 

   
Name of Registered Holder  

 

By:    
  Name:     
  Title:    

 

Tax ID: _________________

 

Electronic Mail : _____________

 

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EXHIBIT B

 

Form to be used to assign Purchase Warrant:

 

(To be executed by the registered Holder to effect a transfer of the within Purchase Warrant):

 

FOR VALUE RECEIVED, does hereby sell, assign and transfer unto the right to purchase shares of Gelteq Limited, a company incorporated in the State of Victoria, Australia (the “Company”), evidenced by the Purchase Warrant and does hereby authorize the Company to transfer such right on the books of the Company.

 

Dated: _______________ , 20_________________ 

 

Signature

 

NOTICE: The signature to this form must correspond with the name as written upon the face of the within Purchase Warrant without alteration or enlargement or any change whatsoever.

 

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